Townhall...
Feds Crack Down on
Campus Flirting and Sex Jokes
By Michael Barone
6/23/2011
When I was growing up, it was widely believed that colleges and
universities were the part of our society with the widest scope for
free expression and free speech. In the conformist America of the
1950s, the thinking ran, few people dared to say anything that went
beyond a broad consensus. But on campus, anyone could say anything he
liked.
Today, we live in an America with enormous cultural variety in which
very few things are considered universally verboten. But on campus it’s
different. There, saying something considerably milder than some of the
double entendres you heard in cable news coverage of the Anthony Weiner
scandal can get you into big trouble.
These reflections are inspired by a seemingly innocuous 19-page letter
on April 4 from the Department of Education’s Office of Civil Rights to
colleges and universities. The letter was given prominence by Greg
Lukianoff, president of the Foundation for Individual Rights in
Education, which has done yeoman work opposing restrictive speech codes
issued by colleges and universities.
OCR’s letter carries great weight since there are few things a
university president fears more than an OCR investigation, which can
lead to losses of federal funds -- which amount to billions in some
cases.
The OCR letter includes a requirement that universities adopt a
“preponderance of the evidence” standard of proof for deciding sexual
harassment and sexual assault. In other words, in every case of alleged
sexual harassment or sexual assault, a disciplinary board must decide
on the basis of more likely than not.
That’s far short of the requirement in criminal law that charges must
be proved beyond a reasonable doubt. And these disciplinary proceedings
sometimes face charges that could also be criminal, as in cases of
alleged rape.
But more often they involve alleged offenses defined in vague terms and
depending often on subjective factors. Lukianoff notes that campus
definitions of sexual harassment include “humor and jokes about sex in
general that make someone feel uncomfortable” (University of California
at Berkeley), “unwelcome sexual flirtations and inappropriate putdowns
of individual persons or classes of people” (Iowa State University) or
“elevator eyes” (Murray State University in Kentucky).
All of which means that just about any student can be hauled before a
disciplinary committee. Jokes about sex will almost always make someone
uncomfortable, after all, and usually you can’t be sure if flirting
will be welcome except after the fact. And how do you define “elevator
eyes”?
Given the prevailing attitudes among faculty and university
administrators, it’s not easy to guess who will be the target of most
such proceedings. You only have to remember how rapidly and readily top
administrators and dozens of faculty members were ready to castigate as
guilty of rape the Duke lacrosse players who, as North Carolina
Attorney General Roy Cooper concluded, were absolutely innocent.
What the seemingly misnamed Office of Civil Rights is doing here is
demanding the setting up of kangaroo courts and the dispensing of what
I would call Marsupial Justice against students who are disfavored by
campus denizens because of their gender or race or political attitude.
“Alice in Wonderland’s” Red Queen would approve.
As Lukianoff points out, OCR had other alternatives. The Supreme Court
in a 1999 case defined sexual harassment as conduct “so severe,
pervasive, and objectively offensive, and that so undermines and
detracts from the victims’ educational experience, that the
victim-students are effectively denied equal access to an institution’s
resources and opportunities.” In other words, more than a couple of
tasteless jokes or a moment of elevator eyes.
Lukianoff and FIRE have an admirable record of defending students’ and
faculty members’ free speech regardless of their point of view, but
anyone familiar with their work knows that the most frequent target of
campus disciplinary groups are male, conservative, religious or some
combination thereof.
I wonder whether there is some connection between this and the
dwindling percentage of men who enroll in and graduate from college.
Are we allowing -- and encouraging -- our university administrators to
create an atmosphere so unwelcoming and hostile to males that we are
missing out on the contributions they could make with a college or
graduate degree?
Education Secretary Arne Duncan has shown an admirable openness to
argument and intellectual debate. Perhaps someone will ask him whether
he wants his department to be encouraging kangaroo courts and Marsupial
Justice on campuses across the country.
Read it at Townhall
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